The rights of cohabitees- time for a change?

If the need for legislation and the lack of alternatives is clear, the question must be asked: why do we not have such legislation?  The answer is not legal, but political, and not the focus of this essay.  Nonetheless the need for such legislation is compounded by the recent increase in cohabitation.  Cohabiting couples accounted for 8.4% of all family units in 2002 compared with 3.9 % in 1996.  The purpose of the remainder of this essay is to show the weakness of any legal arguments against legislative reform and to draw on the experience of other jurisdictions in analysing what a suitable form of legislation may be.

Anticipated opposition to reform

In Article 41.3.1 of the Irish Constitution the State promises to protect the institution of marriage against unjust attack.  It is likely that if legislation were proposed to amend the above situation, opposition would be launched in this regard.  It might be argued that giving cohabitees rights similar to those of married couples would undermine the institution of marriage.  However it is not being suggested here that cohabitees should be given similar rights to spouses.  Marriage is an institution of immense value to society and to give cohabitees the same rights and obligations as married couples would undermine it.  The legislation proposed would merely operate to mitigate unfairness on separation of certain cohabiting couples by looking to past contributions.  This is a far cry from maintenance obligations that would be imposed on a financially dominant spouse who had agreed to care for his/her partner ‘til death do us part’.  

It may still be argued that giving cohabitees any rights in legislation would undermine the institution of marriage.  In a practical sense this may be true if the legislation caused couples to cohabit rather than marry.  This seems implausible from the perspective of either partner.  For the financially dominant partner the prospect of losing property may make cohabitation less attractive than at present.  Even if the financially weaker partner could influence the relationship and did so with separation entitlements in mind, surely they would choose marriage rather than cohabitation.  In any event it is unlikely that either partner will make such a decision based on legal provisions for separation.  

An opponent to the proposed legislation may still argue that whilst the legislation would not give rise to an increase in cohabitation it would simply undermine the status and esteem of marriage.  Such an argument would be weak because various statutes in Ireland already recognise cohabitees.  In this regard the English Law Society state that it would ‘surely be an unfortunate reflection on the importance of marriage if …an alternative would undermine it’.  They are also of the opinion that a public debate regarding the defining of cohabitees’ rights may actually enhance the importance of marriage.

The proposed legislation may arguably subject cohabitees to legal rules they had chosen to avoid.  The response to this is that the laws role in this area is merely to protect the vulnerable who have cohabited and made contributions without any thought for the legal consequences.  If cohabitees having addressed the issue wanted to avoid such consequences they could make an agreement, in which case the proposed legislation need not operate.

A model from other jurisdictions

• France

A number of European countries have introduced the concept of a ‘registered partnership’.  In France if an unmarried couple register a Pacte civil de solidarite they have more extensive rights than unmarried couples but less than married couples.

• Australia

Most Australian states have introduced similar legislation in this regard.  The New South Wales Property (Relationships) Act 1984 confers a wide discretion on the court to redistribute property rights in accordance with what is ‘just and equitable’ having regard to financial contributions, improvements and work in the home.  The power available to the court is more limited than divorce because the future needs of the parties are not taken into account.

To be entitled to make such claims the applicant needs to have lived with the respondent for at least 2 years unless he/she can show either, that there is a child of the parties, or that the applicant had made substantial contributions and would not be adequately compensated without an order or that the applicant has care and control of a child of the respondent.  

• New Zealand

De facto relationships are treated on the same basis as married couples with respect to property division on separation.  The court may redistribute property rights to balance the financial position of each partner if the interests of fairness so demand.  

• Barbados

The Family Law Act 1981 allows the court to redistribute property rights.  The courts discretion is exercisable on the overriding consideration of justice and fairness as the circumstances of the case dictate.  Numerous factors including childcare are taken into account.  The qualifying period is 5 years. 

• Canadian State of Manitoba

A cohabitant comes within the definition of a spouse in the Family Maintenance Act 1987 and so is entitled to claim for maintenance if there has been cohabitation for 5 years during which they have been substantially dependent on their partner.  The court is entitled to make maintenance orders taking into account factors which include childcare and work in the home, but is not entitled to redistribute property rights.

• Scotland

The Scottish Law Commission has recommended that a cohabitee should be able to apply to court for financial provision based on section 9(1)(b) Family Law (Scotland) Act 1985: that fair account should be taken of any economic advantage derived by either party from contributions by the other, and of any economic disadvantage suffered by either party in the interests of the other party or of any child of the family.  This would include where one party has given up a good pensionable career to look after the children of the relationship.  The Commission did not recommend maintenance obligations because there is no obligation of support during cohabitation.

The Commission do not think it necessary for the court to redistribute property rights because an award of a capital sum ought to be sufficient to enable justice to be done.  They recommend that a qualifying time period is ‘not necessary or desirable’ because their proposed legislation would be self-limiting in the sense that if cohabitation was short with little commitment there would be fewer qualifying contributions.  They suggest claims should be made within one year of the end of cohabitation to discourage stale claims and let the parties know where they stand.  

• Northern Ireland

The Northern Ireland Law Reform Advisory Committee recommends in the absence of any agreement to the contrary, the joint residence of ‘qualifying cohabitees’ acquired after the parties become qualifying cohabitees should be held as joint tenants in equity.  If the residence has been acquired by one of the parties before cohabitation they recommend conferring on the court the power to determine the parties’ beneficial interests taking into account contributions in money or money’s worth, but not to redistribute property rights.

The Committee recommends that the parties must have been living together ‘effectively as husband and wife’ in the same household for 2 years within the 3 years preceding the acquisition of the property, or have had a child by the relationship.

• Proposals for Ireland

Whilst the registered partnership approach used in France is popular in continental Europe it would not be a satisfactory solution in this context because it would only protect those in relationships that had been registered.  It would not protect vulnerable parties in relationships where the dominant partner objected to formal recognition of such.

Despite the approach in Manitoba, the trend being set in Australia, New Zealand and Barbados is to leave maintenance orders within the exclusive domain of marriage. These jurisdictions instead enable the court to take into account all relevant factors to redistribute the property in the interests of fairness.  The latter approach would be workable in Ireland and would accord with Shatter’s opinion that there is no valid reason for not extending the Family Law Act 1995 s 36 (providing for court resolution of property disputes between spouses on judicial separation) to the area of cohabitee property disputes.   Whilst the Scottish Law Commission favour the award of a capital sum, such may not be the best solution for the non-owning cohabitant who has care of children of the relationship.  In such circumstances property redistribution would be desirable.  Whilst the Northern Ireland Committee recommends giving the court power only to declare joint tenancy or determine beneficial interests, it is certainly arguable that if this area is going to be reformed by legislation, equitable rights should be discarded.

When deciding who should qualify as a cohabitant the Scottish proposal of not having a qualifying criteria must be rejected to guard against undeserving redistribution of property rights.  There is a case to be made that the 5 year period operative in Barbados would be preferable to the 2 years required in New South Wales as it would guard against undeserving redistributions of property rights.  However the court would be subject to the overriding requirement of fairness in the proposed legislation and therefore a shorter time limit is desirable.  Owusu considers a 5 year limitation is too rigid, defeating the legislative objective.  He suggests that a shorter period may give rise to a reasonable expectation of property rights.    The exceptions to the 2 year qualification in New South Wales seem rational and therefore desirable in any Irish legislation.  However they might be better phrased

1. If the applicant has care of a child, either of the relationship or the respondent        
2. If the applicant has made financial contributions that would not be adequately compensated without a court order.

The suggestion of the Scottish Law Commission that claims should be made within one year of end of cohabitation would seem attractive in legislation that may come under fire for giving rise to uncertainty.

The Northern Ireland Committee include the proviso that the parties must have been living together ‘effectively as husband and wife’.  This would prevent the inclusion of homosexuals unions in the legislation and thereby make implementation more viable in Ireland.  

Conclusion

Irish law may be unfair to a financially weaker cohabitee on separation and has failed to keep pace with changes in society.  Despite concluding that legislation in this area need not necessarily undermine the institution of marriage and is required in light of increasing incidences of cohabitation, the mandate for law reform must come from the legislature.  It would arguably be a brave government to give cohabitees greater rights.  However in light of the increasing incidence of cohabitation it could be said that the tide is beginning to turn in this regard.  The role of this essay has been to recommend legally coherent and workable proposals for reform.  

In conclusion the 1995 Act provides a suitable model for the redistribution of property rights of cohabitees in the interests of fairness by listing relevant factors.  Whilst the question of which cohabitation relationships should qualify for such a court order is difficult, it has been suggested that 2 years may be suitable in Ireland with some exceptions.  A proviso that the parties have been ‘living together effectively as husband and wife’ would be desirable as would a 1 year limitation period on actions.  

The flexibility in the proposed legislation is positively desirable because it enables the court to respond fairly to different factual circumstances.  Any uncertainty regarding what the court may grant a cohabitee on separation would be more apparent than real because such would be worked out in relation to the facts of a particular case, which would be available to the parties involved.  As has been said in relation to the expansion of equity in this area in the commonwealth, ‘There is no doubt that the broader approach…. tends to lead to greater uncertainty and unpredictability… but this may be a necessary consequence of fairness.’ .

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